Gowan v. Ward County Commission

20080239 David Gowan, Plaintiff and Appellant
v.
Ward County Commission, Defendant and Appellee

Appeal from: District Court, Northwest Judicial District, Ward County
Judge Gerald H. Rustad
Nature of Action: Other (Civil)
Counsel:
Appellant: Boughey Law Firm
Appellee: Smith Bakke Porsborg Schweigert & Armstrong
Term: 02/2009   Argument: 02/10/2009  1:30pm
ND cite: 2009 ND 72
NW cite: 764 N.W.2d 425

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
Whether the 3-2 decision of the Ward County Commission should be reversed and the Commission should be ordered to reverse the Planning Commission's decision not to grant the zoning change and to instead approve the plat submitted by Gowan.
Whether the decision of the Commission to deny Gowan use of his property based not on any unsafe conduct by Gowan or his proposed use of the property and instead based on the unsafe conduct and use of nearby property not owned or operated by Gowan is
1) unreasonable, arbitrary, and capricious as a matter of law an improper and unconstitutional taking under the United States Constitution and the North Dakota Constitution;
2) unreasonable, arbitrary, and capricious is an improper and unconstitutional taking as the law is applied to the facts of this case under the United States Constitution and the North Dakota Constitution; and
3) unreasonable, arbitrary, and capricious under North Dakota law.

Appellee's Statement of the Issues:
I.Whether the decision of the Ward County Commission to deny David Gowan's zoning change request was arbitrary, capricious or unreasonable.
II.Whether the decision of the Ward County Commission to deny David Gowan's zoning change request violated David Gowan's equal protection or due process rights.
II.Whether David Gowan's claim of unconstitutional taking without just compensation is properly before the Court in this appeal. If the claim is properly before the Court, whether the decision of the Ward County Commission to deny David Gowan's zoning change request was an unconstitutional taking without just compensation.

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Docket entries:
109/24/2008 NOTICE OF APPEAL: 09/22/2008
210/15/2008 Order for Transcript filed by Appellee
310/21/2008 MOT. EXT/TIME APPELLANT BRIEF (faxed)
410/21/2008 E-FILED MOTION (MAT) (faxed)
510/22/2008 ACTION BY ACTING CHIEF JUSTICE (extended to 40 days after TRA is filed). Granted: 12/15/2008
610/22/2008 RETENTION OF RECORD ON APPEAL: 12/02/2008
711/05/2008 TRANSCRIPT DATED JUNE 6, 2008.
811/05/2008 DISK - TRA of 6-6-08
911/13/2008 RECORD ON APPEAL - includes separate entry nos. 11,34,56, & 57
1012/15/2008 APPELLANT BRIEF (EFB)
1112/15/2008 E-FILED BRIEF (ATB)
1212/15/2008 APPELLANT APPENDIX (EFA)
1312/15/2008 E-FILED APPENDIX - (ATA)
1401/05/2009 Received $25 surcharge for ATB (Receipt# 18670)
1501/08/2009 APPELLEE BRIEF (e-filed)
1601/08/2009 E-FILED BRIEF (AEB)
1701/08/2009 APPELLEE APPENDIX (e-filed) PDF
1801/08/2009 E-FILED APPENDIX (AEA) PDF
1901/09/2009 Received $25 surcharge for AEB (Receipt #18676).
2001/09/2009 Received 7 copies of ATB from Central Duplicating.
2101/09/2009 Received 6 copies of ATA from Central Duplicating.
2201/12/2009 Received 7 copies of AEB from Central Duplicating.
2301/13/2009 Received 6 copies of the AEA from Central Duplicating Services
2401/22/2009 REPLY BRIEF
2501/22/2009 E-FILED BRIEF - RYB
2601/26/2009 Received 7 copies of RYB from Central Duplicating
2702/10/2009 APPEARANCES: Lynn M. Boughey; Randall J. Bakke
2802/10/2009 ARGUED: Boughey; Bakke
2902/10/2009 ORAL ARGUMENT WEBCAST
3004/30/2009 DISPOSITION: AFFIRMED
3104/30/2009 UNANIMOUS OPINION: Crothers, Daniel John
3204/30/2009 Costs on appeal taxed in favor of the appellee
3305/04/2009 Judgment Mailed to Parties
3405/28/2009 MANDATE
3506/03/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3608/03/2009 Notice of filing Petition for Writ of Certiorari to U.S. Supreme Court
3710/13/2009 Petition for Writ of Certiorari to the US Supreme Court is DENIED

Generated from Supreme Court Docket on 10/30/2014